Seider v. Bd. of Exam. of Psychologists

Decision Date29 November 2000
Citation2000 ME 206,762 A.2d 551
PartiesJudith A. SEIDER v. BOARD OF EXAMINERS OF PSYCHOLOGISTS.
CourtMaine Supreme Court

Christopher C. Taintor (orally), Norman, Hanson & DeTroy, Portland, for plaintiff.

Andrew Ketterer, Attorney General, Judith M. Peters, Asst. Atty. Gen. (orally), Augusta, for defendant.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

RUDMAN, J.

[¶ 1] Judith A. Seider appeals from the judgment of the Administrative Court (Wheeler, J.) affirming a decision and order of the Board of Examiners of Psychologists. Seider contends that the Board erred in numerous respects. Finding that the record contains substantial, competent evidence to support the conclusions of the Board, we affirm.

I. CASE HISTORY

[¶ 2] Seider is a clinical psychologist who was licensed to practice in the State of Maine. On February 25, 1992, a mother consulted with Seider about the possible sexual abuse of her then four-year-old son. A short time later, after one observation session with the son, Seider concluded that the son had been sexually abused and prescribed a course of treatment. Seider continued the professional relationship with the son and the mother until April 21, 1992, when the mother terminated the relationship.

[¶ 3] In early 1992, the mother shared physical custody of her daughter with her former partner, the daughter's biological father.1 In April 1992, Seider entered into a professional relationship with the daughter and the father and disclosed to the father that the son had been, and continued to be, sexually abused. Because of the alleged ongoing abuse, Seider expressed concerns that the daughter was also at risk. Seider entered into the relationship with the daughter and the father without the mother's knowledge or consent. The mother never authorized Seider to release the confidential information to the father.

[¶ 4] In late November 1992, the father—acting on Seider's recommendations—denied the mother further contact with the daughter. A custody dispute ensued between the mother and the father. In support of the father, Seider provided an affidavit for use in the custody dispute, disclosing confidential information concerning the mother. The mother never authorized Seider to disclose to any party involved in the custody dispute information pertaining to her, the son, or the daughter.

[¶ 5] Although she suspected that the children had been sexually abused, Seider also failed to immediately report her suspicions to the Department of Human Services as is mandated by the Maine statutory reporting requirements. See 22 M.R.S.A. §§ 4011(1) (1992 & Supp.1999-2000) (stating psychologist, who "knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected, ... shall immediately report or cause a report to be made to the department"). Seider suspected that the son had been sexually abused as early as February 25, 1992, but did not report the suspected abuse to DHS until April 28, 1992. Additionally, though she suspected as early as April 1992 that the daughter was at risk of sexual abuse, Seider did not report her suspicions to DHS until DHS contacted her. DHS's involvement stemmed from a notice it received from Dr. Sumner Berkovich—the children's pediatrician—reporting the suspected sexual abuse of the daughter. Dr. Berkovich's call was triggered by a call Seider made to him to discuss the daughter. In the course of that conversation, Seider also disclosed to Dr. Berkovich that the mother herself had been sexually abused. The mother never authorized the disclosure.

[¶ 6] Because of these reports, DHS initiated an investigation. On January 12, 1993, it issued an investigative subpoena to Seider, requesting "[a]ny and all notes, records, and evaluations, regarding [the daughter, the father, the mother, and the son]." In response to the subpoena, Seider provided treatment records for the mother, the son, the father, and the daughter, together with a fifty-one page explanation, hereinafter referred to as "51-page explanation,"2 divulging confidential information pertaining to the mother, the son, and the daughter.

[¶ 7] Based on the foregoing events, the mother filed a complaint with the Board, asserting that Seider had breached her obligations of confidentiality. The matter was heard by the Board over four days in the spring of 1995. In a decision and order dated July 14, 1995, the Board found 12 violations of the 1992 American Psychological Association Ethical Principles of Psychologists and Code of Conduct. These include four separate violations of Principle 5.02, two separate violations of Principle 5.03, and one violation each of Principles 1.14, 1.15, 1.17(c), 2.01(b), 2.04(b), and 7.03. In addition, the Board found three violations of the 1991 American Association of State Psychology Boards Code of Conduct. These include two violations of Sections III(E)(8) and III(I)(1), taken in conjunction, and one violation of Section III(E)(3). Upon Seider's petition for review,3 the Administrative Court affirmed the findings of the Board. This appeal followed.

II. STANDARD OF REVIEW

[¶ 8] When a decision of an administrative agency is challenged on appeal, we review the action of the agency directly. CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258, 1261 (citing Nyer v. Maine Unemployment Ins. Comm'n, 601 A.2d 626, 627 (Me.1992)). "The standard of review is `limited to whether the [governmental agency] abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record.'" Davric Maine Corp. v. Maine Harness Racing Comm'n, 1999 ME 99, ¶ 7, 732 A.2d 289, 293 (citation omitted); see also CWCO, Inc., ¶ 6, 703 A.2d at 1261 (stating that, in reviewing an administrative agency decision, the issue before the court is not whether it would have reached the same conclusion as the agency, "but whether the record contains competent and substantial evidence that supports the result reached."); Bischoff v. Bd. of Trustees, 661 A.2d 167, 170 (Me.1995) (holding Law Court will not overturn conclusions supported by competent and substantial evidence).

[¶ 9] An administrative decision will be sustained if, on the basis of the entire record before it, the agency could have fairly and reasonably found the facts as it did. CWCO, Inc., ¶ 6, 703 A.2d at 1261 (citing Aviation Oil Co. v. Dep't of Envtl. Prot., 584 A.2d 611, 614 (Me.1990)). Inconsistent evidence will not render an agency decision unsupported. Bischoff, 661 A.2d at 170. The burden of proof rests with the party seeking to overturn the agency's decision. Id. That party must prove that no competent evidence supports the Board's decision. Id.

III. DISCUSSION
A. Lost Testimonial Evidence

[¶ 10] As a result of an audiotape malfunction on the third and final day of hearing before the Board, a portion of the Board's questions to Seider and her responses and the testimony of witness Kenneth Altshuler were lost. Seider argues that the loss of such testimony means that the record is incomplete, making it impossible for us to meaningfully review the Board's findings, and, therefore, the Board's decision should be vacated.

[¶ 11] The record before us is composed of the full testimony of six witnesses, the complete direct and cross-examination of Seider, fifty pages of the Board's questions to Seider and her responses, four multipaged, single-spaced submissions prepared by Seider for the Board, and 584 pages of documentary exhibits. Seider does not argue that the lost portion of the record materially affected her case, nor has she pointed to any harm or prejudice to her from the loss of Altshuler's testimony or from the loss of the Board's direct examination of her and her responses to its questions.4 Contrary to Seider's assertion, the record—totalling 1288 pages in length—is composed of substantial, competent evidence sufficient to permit a meaningful review.

B. Board's Finding of Violation of Principles 5.02 and 5.03 is Supported by Facts and Law

[¶ 12] The Board found that Seider's 51-page explanation "disclosed much more information than was needed to comply with the [DHS] subpoena" and that the information was disclosed "without an explicit release and, at times, not based on adequate evaluation." Specifically, the Board found Seider's disclosure of such information constituted four violations of the confidentiality provisions—including Principle 5.02 of the APA Code,5 which became effective on December 1, 1992, and Sections III(E)(1) & (12) of the 1991 AASPB Code6 to the extent that any of the four confidentiality violations occurred prior to the effective date of the APA Code.

[¶ 13] Seider contends that the Board's findings that she violated Principles 5.02 and 5.037 are not supported by the facts or the law of this case. She argues that the Board's findings cannot stand because the APA Code does not define the circumstances that give rise to "confidentiality rights."

[¶ 14] Principle 5.02 compels psychologists to protect the confidentiality of those with whom they work or consult and provides that "confidentiality may be established by law, institutional rules, or professional or scientific relationship." APA Code of Conduct, Principle 5.02 (1992). The duty of maintaining confidentiality is established at the very start of a relationship. Principle 5.03(b) further prescribes that "[p]sychologists discuss confidential information obtained in clinical or consulting relationships, or evaluative data ... only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters." APA Code of Conduct, Principle 5.03(b) (1992). By virtue of Principle 5.03(b), a psychologist should regard as confidential any information that he or she obtains in a professional relationship with another individual.8

[¶ 15] Together, Principles 5.02 and...

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